These Principles seek to establish a framework which can be used to ensure firstly, that the right to freedom of expression and the ability to share knowledge and culture are fully protected in the digital age; and secondly, that copyright interests do not unduly restrict them. The Principles also seek to promote positive measures which foster both the free flow of information and ideas and greater access to knowledge and culture on the Internet and beyond.

The Principles were developed as a result of concerns that the fundamental human right to freedom of expression, guaranteed in UN and regional human rights instruments and nearly every national constitution, has been increasingly eroded on the grounds of protecting copyright. The Internet has been at the centre of an alarming expansion of copyright claims at the expense of freedom of expression and, more generally, the protection of human rights. These Principles affirm that the right to freedom of expression and the free flow of information and ideas cannot be seen as marginal to such developments.

Freedom of expression – that is, the freedom of all people to seek, receive and impart information and ideas of all kinds - is the foundation of diversity within cultural expression, creativity and innovation. It is, therefore, an essential part of the right to participate freely in the cultural life of society, enjoying the arts and sharing in scientific advancement: the very benefits that copyright exists to promote.

The full document is well worth a read. It's available in a variety of languages, though I've embedded the English version below. It is truly unfortunate that, over the years, certain copyright maximalists have increasingly used copyright as a tool to stifle free speech and to lock up speech, when, as the principles note, its purpose is supposed to be to encourage and enable more speech. If we start from that principle, we can start to look more closely at what a more reasonable policy might look like, and it's great to see the folks at Article 19 jumping into the fray.

Along those lines, it is rather silly to see something like "World Intellectual Property Day," because "intellectual property" -- or, more specifically, patents, copyrights and trademarks (leaving aside the other smaller categories) -- should never be seen as an end in and of itself, or something to celebrate in and of itself. The point (officially speaking, though some argue there were truly ulterior motives) from the beginning in the US was supposed to be that it would be a tool to "promote the progress" (with copyright and patents) or to act as a form of consumer protection (with trademarks). Tragically, we've strayed far from those ideals, where the concept of locking up and shutting down ideas, expression and the like is considered a perfectly reasonable action under today's laws, in part because the pursuit of "intellectual property" for the sake of "intellectual property." It is this distortion that is such a big part of the problem in the various debates held on the topic. Moving us back to some basic principles of free speech and looking at what best promotes free speech, open expression and creativity seems like a very good idea, rather than automatically assuming that "intellectual property" itself is the goal.

Article 19

I haven't read the Universal Declaration of Human Rights but it seems strange that it took 19 articles to get to the right of free speech. Free speech, at least in this day and age, seems like it would be in the top 2 or 3 things anyone would worry about losing or not having.

Re: That's FINE! But an entire recent movie isn't fair use.

Re: Article 19

The order doesn't really matter. In the US Constitution, what we now know as the 1st Amendment was the third one in the proposed Bill of Rights. The first two didn't get ratified at the time, but the second eventually did and is the 27th Amendment, dealing with Congressional salaries. The other dealt with the number of representatives, and will likely never be ratified.

Re: That's FINE! But an entire recent movie isn't fair use.

So quit doing that, you pirates. After you've quit doing and advocating infringement, then you'd have the moral foundation to argue rolling back to the prior limits on copyright.

1) So who's talking about fair use? We can already engage in as many fair uses as we please to. But I for one want more.

2) So who's talking about infringement? I don't want people to infringe on copyrights. I want people to respect the law and for the law to be worthy of their respect. And so I want to change copyright law itself such that, among other things, many acts which are now infringing would instead be perfectly legal.

It's like driving: If you want to go faster, don't break the law, just get the speed limit raised.

3) No moral foundation is needed. Copyright, as you were told at length quite recently, is utilitarian, and has no moral component to it one way or the other. And if anyone is apt to call for reform, it'll be the people who feel that the law as it stands is too limiting. Remember Prohibition? Some of the people who called for it to be repealed carefully obeyed the law, I've no doubt. But most were happy to drink, and many quite certainly did break the law, did patronize illegal bars and rum runners, and probably even conspired with them to one extent or another. But you wouldn't be satisfied unless it was Carrie Nation herself calling for repeal, which is just ridiculous. Plus you're engaging in an ad hominem argument, which is a dumb thing to do.

Re: Re: That's FINE! But an entire recent movie isn't fair use.

The full exercise of free speech requires.
1) Access to knowledge and culture.
2) A gate-keeper free channel of communication.
3) The ability to remix, and reuse cultural elements.

Given the power of the Internet, and modern computers, only copyright (and patents especially with regards to software) stands in the way of the full exercise of free speech.
Access to knowledge is as important, and the ability to transmit it, is as important as having a means of communication. Further all attempts to make knowledge and culture more expensive to access that the cost of copying and delivery are forms of imperialism; giving significant advantage to those that own and can afford the information and culture.

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I don't follow your point. Theft has many definitions. He's limiting his definition to the very narrow one where someone must be dispossessed of something tangible. Of course, under that definition infringement is not theft. But there are other, more modern definitions that are much broader and include intangibles, such as by interfering with someone's intangible benefits or rights. Infringement only isn't theft if you use the older, narrower definition of theft. As far as culture being locked up goes... please. Copyright brings us culture. You guys miss the forest for the trees.

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I don't think so. But I'm sure you disagree. I honestly don't understand why Mike is such a negative Nancy, always always always focusing on the fringe negatives and completely ignoring any of the mainstream positives. Some balance around here would be appreciated. As well as some substantive discussion. I just don't get the extremist view/inability to discuss mentality.

'Moving us back to some basic principles of free speech and looking at what best promotes free speech, open expression and creativity seems like a very good idea'

and it is. unfortunately, it is exactly why nothing will change. well, that and the fact that to do something sensible and serious to make copyright what it should be and what it was first introduced to do, promote the sciences and arts, would mean politicians having less or even nothing added to their bank balances by the entertainment industries. that ain't gonna happen! politicians have got too used to being funded by Hollywood and they aren't gonna let that stop without a fight. look at what lengths they have gone to so as to maintain the flow of cash? it has meant fucking up copyright laws completely, but those politicians weren't in the least bit bothered about that. the coffers were being filled. that was/is the most important thing!

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You want a balanced discussion? Come to the discussion with evidence of copyright's benefits - benefits that would not be around without it. Until then, what you call "fringe" is increasingly looking like mainstream.

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So, your assertions equating copyright with theft are not backed up by statute or case law?

While some vague, inconsistent, 6th-grade definition of "theft" may be common knowledge, you can't just assert something based on vague "common sense" at some points, and then assert something else based on a technical legal theory at other points. That's called hypocrisy.

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The moment you tell someone in a debate to do the busy-work in support of your argument is the moment you have lost. I don't have any motivation to look up what you're supporting. You do. If you want to convince me of something, back up your points. I will read them, but I cannot promise to agree with you.
The main reason I will not agree with you is because I have never heard of a single copyright case, at least in modern times, where someone who infringed on copyright was charged with and successfully prosecuted and sentenced with theft. If there have been such cases, share them with us. I however will not do the leg-work of searching. That is your job.

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I'm not so sure that "intellectual property" is about filling coffers. Sure, to the MPAA and RIAA and GEM and BREIN and others it is. But so what? Lots of special interests get trashed every day.

I'm beginning to suspect that "intellectual property" is all about stuffing the free speech genie back into the lamp. That is, by teaching the idea that ideas can be someone's exclusive property, and teaching rather exclusive and strict property rights, governments and the like can crush any speech they don't like, all the while publicly wringing their hands about filthy pirates, and respecting private property and privacy. It's the worst kind of two-faced hypocrisy imaginable.

Useful to authors how? As an aspiring author myself, I really don't see any point in asserting my copyright over fans who might share my work online. After all, it's not like file sharing is stealing or leads to lost sales. On the contrary, even, it might be suicidal for me to fight free advertising like that. It seems wisest to not be selfish like that and instead focus on the joy I'm bringing to others. Then they'll share it with me and all our lives will be enriched.

So? The goal is to promote the progress of science -- a public benefit. Specifically, it is to cause the creation and publication of as many works as possible which otherwise would not be created, while also having as many works as possible in the public domain, as fully and immediately as possible. That it is also of use to authors qua authors doesn't change this. Indeed, that's vital to the operation of copyright: authors' desire for money is a ring in their nose from which they can be led.

It's a lot like a farmer enticing an ornery mule to pull a wagon of vegetables to market. Dangle a carrot in front of the mule, and he'll pull. Feed and water him periodically to keep him alive. But the bushels of carrots to to market to be sold for the benefit of the farmer; the mule only gets what the farmer decides is necessary to do the job, whether the mule likes it or not.

And in case you thought that farmers are very sentimental about working animals, remember: most farmers (around here, at least) don't have carts drawn by animals anymore. They have motor vehicles, because they're more useful to the farmers than the mules were.

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You wouldn't recognize the benefits no matter what I say. The benefits are all around you. Culture is flourishing more than ever. Everywhere I look, it's more culture than I could possibly ever enjoy. And I have eclectic tastes. You are completely closed minded and utterly ridiculous in that you can't see ANY benefits of copyright. Do you pirate? That stuff is brought you by copyright. Do you go to the movies? Do you listen to the radio? This isn't hard. You're just INCREDIBLY willfully blind.

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His definition is the "6th-grade" version, not mine. I actually know what I'm talking about. He doesn't.

Of course, my opinion is backed by the law (which he won't/can't cite). I'm not making up the definition. I'm reporting it. I know this stuff because I spend hours and hours each and every day learning about the law from primary sources. Crazy, I know.

hat the definition of theft has been expanded to include intangibles is common knowledge (you should get out more and read more than just Techdirt--it's crazy what you can learn!). That theft, larceny, extortion, and other property crimes includes intangibles is nothing new.

See, e.g.,

Property “is intended to embrace every species of valuable right and interest and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property.”

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Yes, culture is flourishing but again, you've neglected to say that this is due to copyright. In fact, it's plain to see that more and more works are being created in spite of, and not because of, copyright, what with remixes et al. Have a look at ThatGuyWithTheGlasses.com
Going by strictly the letter of the law, the videos on that site are infringing - while reviews, they always throw in clips of music or videos that are not relevant to the discussion. That site is huge and can arguably be called one giant infringement site, but is also a thriving cultural house in spite of copyright.

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I'm happy to do the busywork for others. For you, it's pointless. The reason no one is charged with theft is because there's a special law for dealing with people who steal copyrighted stuff. What's it called? Oh yeah, infringement.

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IANAL but that case law you just cited is from a state court, New York. Copyright law is treated at the federal level if I recall correctly, so a New York judge saying theft encompasses intangibles wouldn't be binding.

The reason I didn't ask cpt was because he already had backed up his argument. Re-read the @ 11:44am comment, last paragraph, second sentence. Right there is a link to where he argued copyright is utilitarian. He argued a point, provided evidence and reasons, to which you responded with "Nope, not true" and nothing else. Your response was therefore meaningless.

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You wouldn't recognize the benefits no matter what I say. The benefits are all around you. Culture is flourishing more than ever. Everywhere I look, it's more culture than I could possibly ever enjoy. And I have eclectic tastes. You are completely closed minded and utterly ridiculous in that you can't see ANY benefits of copyright. Do you pirate? That stuff is brought you by copyright. Do you go to the movies? Do you listen to the radio? This isn't hard. You're just INCREDIBLY willfully blind.

No, he has a good point.

No one would say that there is not a lot of culture. But some of that culture is attributable to things other than copyright. Would Shakespeare have written his plays and poems without copyright? The answer is yes, and we know that because copyright did not exist in his day.

The world has changed a lot since copyright was invented in 1710. Reading is a lot more popular now than it was then. Is that because of copyright? Maybe to some extent. But I bet it is also because of, in no particular order, improvements in artificial lighting, improvements in the manufacture and distribution of paper and ink, improvements in printing technology, improvements in book binding and distribution, labor movements that succeeded in workers getting more leisure time than before, mandatory universal tax layer supported education increasing literacy rates (and in some places, language reforms to aid literacy), protection in the law for free speech and press, and probably a number of other things that I've inadvertently left off the list.

Copyright is a factor, but it is not at all clear that it is the main one, it is a significant one, or even that it has had a positive effect. If you want to say that copyright is solely or even just mainly responsible for culture, I'd like to see you prove it.

And if I had to put money on one thing on that list, btw, it would be artificial lighting getting better. Reading by candlelight sucks and candles -- especially tallow or beeswax candles -- are surprisingly expensive for how much light you get. Edison probably helped the book industry more than all the copyright in the world.

Meanwhile, breaking it down like this also means that we can wonder what would happen if we removed or altered copyright. If copyright were simply abolished from tomorrow on, would culture around the world die overnight? I doubt it. Just as if we suddenly increased the scope and duration of copyright tomorrow, I doubt that we'd see a sudden increase in cultural output.

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So then, legally speaking, it's NOT theft! You don't turn up in court hearing "Well, we're going to charge you with theft, but not really, instead it's copyright infringement". They're two different crimes, with different case laws, different charges and different sentences.

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If this isn't hard, then how come you've been soundly countered each and every time you've posted here? Not once have any of us admitted "Well, you got me, your argument is sound, your evidence solid, you've convinced me". If you come up with a sound argument and solid evidence, I will admit it, I wouldn't be ashamed to be. I'm a man who thrives on evidence and welcomes having my viewpoints challenged. I can pretty much assume everyone else here is the same.

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Funny then that the charges and penalties for say, stealing a CD and infringing on the copyright on the songs from the CD are completely different. Why, it's almost as though the law considers them complete separate charges.

Seriously though, with logic that tortured, you're going to get human rights groups after you.

'I say that copyright infringement is the same thing as stealing, so when they charge someone with copyright infringement, what they really charged them with was stealing. Just with a different name. And a different set of punishments.'

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And if you would stop violating everyone else's rights over their stuff, people might take you seriously. As-is you're just a hypocrite, blaming others for the very thing you engage in on a regular basis.

(Hey, this is fun being able to blame someone for a crime they may or may not have committed, without any burden of proof; I can see why you do it so much.)

Also, you have yet to explain how it's due to copyright that things are being created, rather than say the fact that people create because they want to create, and advances in technology is making it easier for more people to do so, and share their creations.

Seriously, if you're going to give copyright the credit for all the creation that's happening currently, rather than the countless other possible reasons, you kinda have to explain why you think so.

I did my celebrating yesterday. It wasn't World Intellectual Property Day I was celebrating; it was Alice Day. To any like-minded people who may happen to be here, I hope your Alice Day was awesome! :)

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You're right that some intangible things are property and can be stolen. But the argument that copyrighted works qualify doesn't fly. For example, here's a Supreme Court case:

The National Stolen Property Act provides for the imposition of criminal penalties upon any person who "transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud." 18 U.S.C. 2314. In this case, we must determine whether the statute reaches the interstate transportation of "bootleg" phonorecords, "stolen, converted or taken by fraud" only in the sense that they were manufactured and distributed without the consent of the copyright owners of the musical compositions performed on the records.

...

[I]nterference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "`Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.' [17 U.S.C.] 501(a)." Sony Corp., supra, at 433. There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

...

Here, the language of 2314 does not "plainly and unmistakably" cover petitioner Dowling's conduct, United States v. Lacher, 134 U.S. 624, 628 (1890); the purpose of the provision to fill gaps in state law enforcement does not couch the problem under attack; and the rationale employed to apply the statute to petitioner's conduct would support its extension to significant bodies of law that Congress gave no indication it intended to touch. In sum, Congress has not spoken with the requisite clarity.

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"Yet copyright brings us the good stuff that everybody wants..."

Copyright doesn't "bring" anything. The fact that content is being produced on a greater scale than ever before despite copyright infringement occurring on a greater scale than ever before is proof of that.

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Stealing and infringement are two different things. You may consider infringement wrong, though I don't, but conflating it with stealing is dishonest and it suggests that no one sees infringement as wrong and so the only way you can assign a negative connotation to it is by conflating it with something else that most people consider wrong. In calling it stealing you are attempting to confuse taking physical property in someone else's possession and depriving them of it with simply making a copy of something and such attempts at confusion are dishonest.

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Come on, guys. He got his law degree, but isn't practicing yet. He's been auditioning for the MPAA here for a few years and they keep stringing him on. BTW, AJ, I have not infringed on anyone's copyright, ever. Not even an icon next to my name. I don't download music, I don't like music. I don't have any movies on my hard drive, I just don't watch them anymore. I don't violate anyone's artificial rights. You cannot claim the same.

Re:

IP law is stealing, it's robbing me of my natural rights. No one is entitled to a government established monopoly. The alleged justification for this theft is that it allegedly promotes the progress. I don't see this as justification enough. Theft is wrong and there is no justification for it. If I robbed your car because I claim it promotes the progress, even if I donate that car to an art charity, that's not justification. Likewise, robbing me of my right under the allegation that it promotes the progress is not justification. Abolish IP.

Also, IP law should not be about preventing stealing. Infringement is not stealing. IP law should only be about promoting the progress. That you have made it about preventing your perverted definition of stealing and about preventing your subjective opinion of a moral wrong and imposing your arbitrary morals on others is more reason that I want it abolished. If you want to follow your own arbitrary moral standards do it by yourself. Don't impose your moral standards on me.

Re: That's FINE! But an entire recent movie isn't fair use.

IP law is theft. Anyone advocating for IP law is advocating for legalized theft. Some attempt to argue that it is justified theft by claiming that it promotes the progress. There are two problems with this

A: It does not

B: There is no justification for theft. The allegation that theft promotes the progress does not justify theft. Abolish theft. Abolish IP.

Though IP is truly about publishers and exists because of the influence of publishers, and not authors, authors are not entitled to monopoly privileges. If giving them a monopoly privilege is harmful to society and we are better off without it then it is no different than breaking a window to benefit window makers. Yes, it helps window makers but its net effect is a harm on society and so it shouldn't be done. It's no different than window makers breaking windows because it profits them. Likewise, if IP is a net harm to society just because it helps a group of people doesn't mean it should be done. If it's net effect is to harm society it's a social deadweight and those using it to transfer wealth from others to themselves are stealing and stealing is wrong.

It is also not the governments job to aid authors in making profit to the detriment of society. The government shouldn't choose winners and losers and the government shouldn't provide people with a living. We have a welfare system already in place. IP should not be a form of welfare for authors.

and IP is really harmful to authors and society and only really helps publishers. To say otherwise is an obvious lie that everyone knows. Either make IP non-transferable or abolish it. Make it illegal for a corporation to own IP and make IP non-transferable.

and the property argument is nonsense. IP should not exist because someone thinks its a property right. It's not. It's a privilege and it should be a non-transferable one. But of course all the publishers and middlemen will then shout "NO, NO NO!!!!" why? because they know darn well that this isn't about artists but about the parasite middlemen that freeload off of artists and the public.

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Funny how wilfully blind these people want to be, despite evidence showing that pirates pay for stuff. I suppose anything that doesn't fall in with the RIAA's worldview gives them an allergic reaction.

The Statute Of Anne Which grants authors copyright after 300 years of printing/publishing. It restored the control over printing to the stationers company that they had held previously under a law that gave them the right to control what was published(censorship).

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Right, it's not property under that statute which is a possession of stolen property statute. That's different than a theft statute. You can have theft of good will, but you can't be charged with possessing stolen good will. See the difference?

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It's not the least bit dishonest to call infringement theft. Theft is a very broad term that encompasses more than just taking tangible items. Interfering with one's intangible rights in a thing is also theft. This broader definition is over a century old. I think it's dishonest to pretend like the meaning of theft was set in stone centuries ago and to ignore the last century plus of law.

Lockean notions of rewarding labor are abundant in the case law and commentary. Many Framers/Founders held Lockean views. To ignore that is to ignore reality. Benefiting the public is not inconsistent with rewarding authors. Copyright does both, by design. It's both Lockean and utilitarian. Always has been.

See, e.g.,

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in "Science and useful Arts." Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.

JUSTICE STEVENS' characterization of reward to the author as "a secondary consideration" of copyright law, post, at 227, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the "Progress of Science." As we have explained, "[t]he economic philosophy behind the [Copyright] [C]lause ... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge.... The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F.3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing] ... Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides . . . with the claims of individuals." The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). JUSTICE BREYER's assertion that "copyright statutes must serve public, not private, ends," post, at 247, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

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In case it's not clear... Possession statutes require tangible property--you can't physically possess something which is intangible. But theft statutes can apply to both tangible and intangible property--you can have theft of something intangible.

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Right, it's not property under that statute which is a possession of stolen property statute. That's different than a theft statute. You can have theft of good will, but you can't be charged with possessing stolen good will. See the difference?

Copyrights are arguably intangible property, but they're damn near impossible to steal; ordinary piracy doesn't come close. Copies are certainly property, and are stolen all the time, but this isn't news; medieval libraries had books chained to lecterns. Creative works, though, they're not property at all. And this fact was recognized in this case.

You seem to have not read the important bits, like this:

bootleg" phonorecords, "stolen, converted or taken by fraud" only in the sense that they were manufactured and distributed without the consent of the copyright owners of the musical compositions performed on the records.

This:

[I]nterference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "`Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.

This:

It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal

Or this:

While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

Congress and the Supreme Court have spoken: copyright infringement is not theft. It is copyright infringement, a sui generis offense.

Your attempt to distinguish it is pretty awful. The possession statute here required as an element of the offense, that the things possessed had been stolen, etc. Since they were not stolen, despite being infringingly made, the possession statute did not apply.

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If I walk into a store and shoplift a CD, the store has one fewer CD than it did before. The store is out the merchandise and the money it took to buy it. If I download that same album from the internet, nobody has less of what they did before and nobody is out anything. Furthermore, if I download something that somebody is giving away for free, how is that stealing?

It sounds like by focusing on how copyright is supposed to work, you're ignoring how it actually works. You need to address the rampant abuse in the system, not just cite precedents that can be overturned while telling people to get over it as if you're Adam Orth. Copyright seems to be one of those ideas that looks good on paper, but is awful in execution, which means no amount of hearkening back to the past will help your case.

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The modern notion of theft is far broader than the common law notion of larceny. Larceny was limited to physical dispossession of tangible property. Theft includes all of larceny, but also includes any interference with the intangible rights and benefits of ownership. Copyright infringement is theft because the infringer interferes with the rights and benefits of ownership of the copyright holder.

As far as Dowling goes, I think you're conflating the difference between a tangible copy and an intangible copyright. Dowling turned on whether the particular copies being transported across state lines were stolen. They weren't. The physical materials that were being transported (the phonorecords) were not stolen. Since those were not stolen property, Section 2314 did not apply:

We must determine, therefore, whether phonorecords that include the performance of copyrighted musical compositions for the use of which no authorization has been sought nor royalties paid are consequently "stolen, converted or taken by fraud" for purposes of § 2314. We conclude that they are not.

Dowling, 473 U.S. at 215-16.

You seem to have not read the important bits, like this:

bootleg" phonorecords, "stolen, converted or taken by fraud" only in the sense that they were manufactured and distributed without the consent of the copyright owners of the musical compositions performed on the records.

That's right. The physical phonorecords at issue were not stolen property.

This:

[I]nterference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "`Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.

I think you have to put that into context by looking at the rest of the paragraph:

There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by § 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially like infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. As a result, it fits but awkwardly with the language Congress chose—"stolen, converted or taken by fraud"—to describe the sorts of goods whose interstate shipment § 2314 makes criminal.

Dowling, 473 U.S. at 217-18.

The Court is saying that in the context of Section 2314 there must be physical goods that are stolen. The theft that occurs when one infringes is the theft of intangible rights and benefits of ownership. The object of that theft is intangible, and it can't be possessed and shipped across state lines. Note how the Court says that infringement is a "taking." They just don't think the thing taken is the type of thing that Section 2314 encompasses.

This:

It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal

Right. There is a taking, but it's not a taking of tangible property, the transportation of which is what Section 2314 proscribes.

Or this:

While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

Again, the context is whether the property is stolen for purposes of Section 2314, which requires the object of the theft to be physical property. I don't think that dicta negates my point.

Congress and the Supreme Court have spoken: copyright infringement is not theft. It is copyright infringement, a sui generis offense.

On the contrary, I think copyright infringement recognized that intangibles could be the object of theft long before the notion that intangibles could be the object of theft caught on in other contexts.

Your attempt to distinguish it is pretty awful. The possession statute here required as an element of the offense, that the things possessed had been stolen, etc. Since they were not stolen, despite being infringingly made, the possession statute did not apply.

The possession statute requires that the object of the theft be tangible property, or else it's not possible to actually possess it. One cannot physically possess an intangible right or benefit and carry it across state lines.

Great discussion. I don't know who you are, but I'm glad you're on TD bringing some badly-needed reasoning in the comments.

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Theft includes all of larceny, but also includes any interference with the intangible rights and benefits of ownership. Copyright infringement is theft because the infringer interferes with the rights and benefits of ownership of the copyright holder.

Any interference? In that case, I'll be sure to call the police the next time that a blackout causes me to lose my unsaved computer files. I'd love to see some case cites and statutory definitions for this.

AFAIK theft typically involves unlawful taking and the intent to deprive the owner of the thing taken. You can interfere with a copyright by infringing, but you can't take it or deprive the owner of it at all easily. Indeed, the copyright remains good and perhaps even uninfringed upon against the rest of the world, even if you do infringe.

There are colloquial uses of the word of course, but they're hardly illuminating or worth taking seriously. (E.g. "Stealing" a fry from a person you're dining with)

Dowling turned on whether the particular copies being transported across state lines were stolen.

No, what the government was trying to do in Dowling was to say that because the physical copies being transported were pirated copies, they were for that reason alone stolen under the meaning of the Act. No one ever suggested AFAIK that the records were stolen from a loading dock or made out of purloined vinyl. The infringing nature of the records was the only thing to hang the claim of theft upon, and it failed.

The Court is saying that in the context of Section 2314 there must be physical goods that are stolen.

Tangibility isn't the key -- the statute prohibits transferring stolen money in interstate commerce, but this needn't be done with bundles of banknotes. Let's take a look at US v. Riggs (which people around here may remember as the infamous E911 case, that flopped in such a spectacular manner):

The [Dowling] Court ruled that while the holder of a copyright possesses certain property rights which are protectible and enforceable under copyright law, he does not own the type of possessory interest in an item of property which may be "stolen, converted or taken by fraud." Id. 473 U.S. at 216-18. Thus, the Court held that § 2314 does not apply to interstate shipments of "bootleg" and "pirated" phonorecords whose unauthorized distribution infringes on valid copyrights. Id. 473 U.S. at 228-29.

Neidorf also cites United States v. Smith, 686 F.2d 234 (5th Cir. 1982), to support his argument. Like Dowling, Smith held that copyright infringement is not the equivalent of theft or conversion under § 2314. Id. at 241. The instant case, however, is distinguishable from Dowling and Smith. This case involves the transfer of confidential, proprietary business information, not copyrights. As Dowling and Smith recognized, the copyright holder owns only a bundle of intangible rights which can be infringed, but not stolen or converted. The owner of confidential, proprietary business information, in contrast, possesses something which has clearly been recognized as an item of property. Carpenter, 108 S. Ct. at 320; Keane, 852 F.2d at 205. As such, it is certainly capable of being misappropriated, which, according to the indictment, is exactly what happened to the information in Bell South's E911 text file.

On the contrary, I think copyright infringement recognized that intangibles could be the object of theft long before the notion that intangibles could be the object of theft caught on in other contexts.

Given that infringement wasn't criminalized until late in the 19th century, I suspect, without having actually researched it, that it post dates that idea in other contexts, e.g. wire fraud.

Great discussion. I don't know who you are, but I'm glad you're on TD bringing some badly-needed reasoning in the comments.

I'm always happy to chat, although I regret having been so busy this weekend which is why my reply is so late.

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Sorry for the delay.

Any interference? In that case, I'll be sure to call the police the next time that a blackout causes me to lose my unsaved computer files. I'd love to see some case cites and statutory definitions for this.

I didn't mean that any interference whatsoever is actionable as theft, conversion, or trespass to chattels. What I meant is that the concept of theft is broader than larceny and can include interferences with rights and benefits, i.e., intangible interests.

AFAIK theft typically involves unlawful taking and the intent to deprive the owner of the thing taken.

That's the definition of larceny: unlawful dispossession plus intent to deprive. But look, for example, at the Restatement's definition of trespass to chattel:

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value . . . .

Restatement (Second) of Torts § 218 (1965).

Trespass to chattel and conversion are the civil law counterparts to theft, the difference being that it's strict liability and there is no intent element. Subpart (a) is the dispossession that you're referring to when you say unlawful taking. I'm talking about subpart (b) which states that it's also a trespass to impair the chattel's "condition, quality, or value." By violating one of the exclusive rights in a copyright, which is a chattel, see Black's Law Dictionary (9th ed. 2009) ("personal chattel" is a "tangible good or an intangible right (such as a patent)."), one is impairing the value of that copyright. That's a trespass.

You can interfere with a copyright by infringing, but you can't take it or deprive the owner of it at all easily. Indeed, the copyright remains good and perhaps even uninfringed upon against the rest of the world, even if you do infringe.

I think you can easily dispossess someone of their copyright. For example, I can file a fraudulent assignment with the Copyright Office claiming that I have legal title to someone else's copyright. That would be a conversion. See, e.g., Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003) (holding that a domain name can be the object of conversion). But what I'm talking about with infringement is not the taking of legal title. Rather, it's the taking of one of the intangible benefits of ownership that lessens the value of the copyright.

I quoted this above: Property "is intended to embrace every species of valuable right and interest and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property." People ex rel. Short v. Warden of City Prison, 145 A.D. 861, 863 (1911) aff'd, 206 N.Y. 632, 99 N.E. 1116 (1912) (discussing extortion under New York law). Infringement deprives someone of an interest in their copyright. If you infringe my copyright, you've taken something of value from me since you didn't pay for a license.

No, what the government was trying to do in Dowling was to say that because the physical copies being transported were pirated copies, they were for that reason alone stolen under the meaning of the Act.

Right. And that reinforces my point that the particular copies being transported weren't stolen property. That does nothing to disprove my argument that interests in the copyright were nonetheless stolen. Those interests, being intangible, can't be possessed for purposes of a possession of stolen property statute.

Tangibility isn't the key -- the statute prohibits transferring stolen money in interstate commerce, but this needn't be done with bundles of banknotes.

The statute says "transports, transmits, or transfers." If the money is in physical form, such as cash, bond, or check, then the "transports" prong would apply. If it involves a wire transfer, then the "transmits" or "transfers" prong would apply. The issue in Dowling was as to tangible property, so the "transports" prong was the issue. The things being transported were not the intangible rights that had been interfered with.

Let's take a look at US v. Riggs (which people around here may remember as the infamous E911 case, that flopped in such a spectacular manner):

The [Dowling] Court ruled that while the holder of a copyright possesses certain property rights which are protectible and enforceable under copyright law, he does not own the type of possessory interest in an item of property which may be "stolen, converted or taken by fraud." Id. 473 U.S. at 216-18. Thus, the Court held that § 2314 does not apply to interstate shipments of "bootleg" and "pirated" phonorecords whose unauthorized distribution infringes on valid copyrights. Id. 473 U.S. at 228-29.

Neidorf also cites United States v. Smith, 686 F.2d 234 (5th Cir. 1982), to support his argument. Like Dowling, Smith held that copyright infringement is not the equivalent of theft or conversion under § 2314. Id. at 241. The instant case, however, is distinguishable from Dowling and Smith. This case involves the transfer of confidential, proprietary business information, not copyrights. As Dowling and Smith recognized, the copyright holder owns only a bundle of intangible rights which can be infringed, but not stolen or converted. The owner of confidential, proprietary business information, in contrast, possesses something which has clearly been recognized as an item of property. Carpenter, 108 S. Ct. at 320; Keane, 852 F.2d at 205. As such, it is certainly capable of being misappropriated, which, according to the indictment, is exactly what happened to the information in Bell South's E911 text file.

That's not accurate. A copyright itself can be converted, such as by presenting the Copyright Office with a fraudulent assignment. Moreover, a copyright is a property right just the same as a trade secret or a right of publicity. An interest in a copyright can be misappropriated. We don't call it theft because we already have another name for it--infringement.

Given that infringement wasn't criminalized until late in the 19th century, I suspect, without having actually researched it, that it post dates that idea in other contexts, e.g. wire fraud.

Copyright infringement was criminalized in 1897, IIRC. What I meant though was that copyright infringement recognized that an interference in the intangible interests in a chattel could be actionable long before the modern notion of theft was adopted which includes the same idea.

Still, though, I think you're over-reading Dowling, which look at the transportation of tangible objects, and not focusing on the modern definitions of trespass, conversion, or theft, which include interferences or devaluations of intangible rights and interests.

For example:

Courts have said that the word "property" is all-embracing so as to include every intangible benefit and prerogative susceptible of possession or disposition. The construction of the word "property" signifies any valuable right or interest protected by law. Making an unauthorized copy of a "borrowed" key, which is analogous to making an unauthorized copy of a trade secret or an unauthorized copy of computer data, destroys the intangible benefit and prerogative of being able to control access to one's residence just as thoroughly as outright theft of the key itself.

People v. Kwok, 63 Cal. App. 4th 1236, 1250-51 (1998).

The modern notion of property is quite broad, referring to these intangible benefits and rights. And it follows that the modern notion of torts and crimes involving such property is also broad.

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Trespass to chattel and conversion are the civil law counterparts to theft, the difference being that it's strict liability and there is no intent element.

Trespass to chattel is one of the classic intentional torts. Copyright infringement is a strict liability offense, however, which is actually one of the big problems with infringement; it should really be a negligence standard at most.

it's also a trespass to impair the chattel's "condition, quality, or value."

Well, infringement is certainly much more similar to some form of trespass than theft, what with the lack of dispossession. But remember that the chattel is not the work, it is the copyright that pertains to the work. Normally chattels are tangible objects, and it's easy to damage a tangible object which is the subject of property rights (e.g. keying a car), and this is not viewed as damage to the property rights themselves. And it's a good idea when dealing with trespass to chattels to have some sort of physical thing involved, even if there are also intangibles (e.g. a DoS attack against a server is taxing a physical computer's resources to capacity). To have absolutely nothing other than intangibles seems to me to make this little more than a contest of convincing metaphors rather than real trespass. I don't see what damage an act of piracy does to the exclusive rights that comprise copyright; surely those rights are as strong as ever, just as the damage to the keyed car doesn't damage the ownership of the car itself.

I think you can easily dispossess someone of their copyright. For example, I can file a fraudulent assignment with the Copyright Office claiming that I have legal title to someone else's copyright. That would be a conversion.

That would be fraud against the Copyright Office, but filing an assignment with them doesn't have much effect on its own. It's not really analogous to conversion by means of fraudulently changing DNS records, since at least in the latter case, many third parties will update their records with the fraudulent information.

That does nothing to disprove my argument that interests in the copyright were nonetheless stolen. Those interests, being intangible, can't be possessed for purposes of a possession of stolen property statute.

No, the copyrights were not the stolen property in Dowling. The allegedly stolen property were the tangible records. What made them stolen, according to the government, was that they were made in an infringing manner. And the Court held that since infringing was not stealing of anything whatsoever, the records had not been stolen, despite having been made unlawfully per the Copyright Act.

Moreover, a copyright is a property right just the same as a trade secret or a right of publicity.

Again, that's debatable. I would argue that it is not, although at least there is a credible argument for it. But in any event, the thing that fills the role that should be that of the chattel in such cases isn't the copyright, it is the creative work, which certainly isn't property. Indeed, if it were, we wouldn't need all this copyright stuff to simulate what it would be like.

An interest in a copyright can be misappropriated.

As with the idea that a copyright itself could be stolen, it seems possible but contrived, and certainly something that's rare if it occurs at all. To use someone else's copyright would be to use the exclusionary rights, since that's all that copyright is; using the work itself in defiance of the exclusionary right would not be a misappropriation, since copyright does not consist of an affirmative right to permit something. Licenses in copyright are just a promise to not take action to enforce an exclusionary right.

destroys the intangible benefit and prerogative of being able to control access

It hardly "destroys" it.

And it follows that the modern notion of torts and crimes involving such property is also broad.

So long as copyright infringement has to be exclusively argued as copyright infringement, and given the problems with common law copyrights, there's no way to know. But then, why have all of this, if it's a simple tort? And further, if copyright law were superfluous, might there not be at times issues with regulatory takings? Yet these have not arisen, which suggests too that copyright is sui generic.